Monday, November 17, 2014
We covered earlier the Supreme Court’s per curiam decision in Johnson v. City of Shelby summarily reversing the Fifth Circuit. It’s a short opinion—just two and a half pages—but it has some important things to say about pleading standards. Here are a few quick thoughts:
The primary issue in the case is whether the district court properly rejected the plaintiffs’ due process claim for failing to invoke 42 U.S.C. § 1983 explicitly in their complaint. The Fifth Circuit had affirmed based on a misguided line of lower court decisions finding complaints to be “fatally defective” for failing to cite § 1983. The Supreme Court’s Johnson opinion makes clear that this line of cases is wrong—a plaintiff’s failure to cite § 1983 in his or her complaint is not fatal. From page 1 of the slip opinion: “Federal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”
Nonetheless, the Court states that—on remand—the Johnson plaintiffs “should be accorded an opportunity to add to their complaint a citation to § 1983.” [Slip Op., p.3] This is admittedly somewhat puzzling. Why would there be any need to amend the complaint to include something that is not required? One possible explanation is that the plaintiffs had asked the district court for leave to amend the complaint, but the court refused and the Fifth Circuit affirmed that refusal. It is valuable, therefore, for the Supreme Court to reemphasize—with its citation to Rule 15(a)(2)—the Federal Rules’ instruction that “[t]he court should freely give leave when justice so requires.” [See Slip Op., p.3] In any event, the Supreme Court simply insists that the plaintiffs have an opportunity to add a citation to § 1983 to their complaint (as they requested). Given the Supreme Court’s conclusion that no such citation is required, it would be entirely proper for the Johnson plaintiffs and the lower court to agree that no amendment to the complaint is necessary in order for the plaintiffs’ claims to be resolved on the merits.
The most intriguing part of the Supreme Court’s Johnson opinion, however, may be the paragraph discussing Twombly and Iqbal. The Court initially notes that Twombly and Iqbal do not resolve whether the plaintiffs were required to cite § 1983 in the complaint, because Twombly and Iqbal “concern the factual allegations a complaint must contain to survive a motion to dismiss.” [Slip Op., p.2 (court’s emphasis)] But the Court goes on to say that the complaint in Johnson was “not deficient” under Twombly and Iqbal because the plaintiffs “stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. See Fed. Rules Civ. Proc. 8(a)(2) and (3), (d)(1), (e).” [Slip Op., pp.2-3]
Can a plaintiff really comply with Twombly and Iqbal merely by “stat[ing] simply, concisely, and directly events that, they alleged, entitled them to damages from the city”? Yes. Keep in mind: even Iqbal recognized that non-conclusory allegations must be accepted as true at the pleadings phase, without any inquiry into whether the truth of those allegations is plausibly suggested by other allegations. One of many frustrating aspects of the Iqbal majority opinion was that it failed to explain what made the crucial allegations in the Iqbal complaint too conclusory to be accepted as true. But I’ve argued elsewhere that one way to make sense of Twombly and Iqbal—in light of the text and structure of the Federal Rules and Supreme Court precedent that remains good law—is through a transactional approach to pleading. That is, an allegation is conclusory when it fails to identify adequately the acts or events that entitle the plaintiff to relief from the defendant. It is only when an allegation obscures the underlying real-world events with mere legal conclusions that it should be disregarded as conclusory under Iqbal.
On this point, it’s particularly interesting that the plaintiffs’ claim in Johnson was “that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen.” [Slip Op., p. 1] Such a claim—like the claim at issue in Iqbal—hinges on the defendants’ intent. Properly understood, Iqbal does not hold that an allegation is “conclusory” simply because it alleges that a defendant acted with a certain state of mind. Rather, such an allegation should be accepted as true—including its description of the defendant’s intent—as long as it provides a basic identification of the liability-generating events or transactions. The Supreme Court’s reasoning in Johnson is consistent with this approach, and confirms that Twombly and Iqbal need not be read to impose heightened burdens on plaintiffs at the pleadings phase.
All in all, Johnson v. City of Shelby is a short-but-sweet per curiam opinion that not only gets the right result on the primary issue presented, but also reflects a more sensible approach to pleading generally. Lower courts should take note.
Saturday, November 15, 2014
On Monday we covered Johnson v. City of Shelby, a per curiam Supreme Court decision on pleading that summarily reversed the Fifth Circuit. Here’s some of the coverage of that decision from this past week:
- City of Shelby: New SCOTUS Pleadings Opinion in Visual Context (Colin Starger)
- SCOTUS Per Curiam Procedure Decisions Raise (At Least) As Many Questions As They Settle (Michael Dorf)
- Twombly’s Remorse (Barry Barnett)
Monday, November 10, 2014
We’ve been watching Johnson v. City of Shelby, a case raising some important questions on pleading standards that the Supreme Court relisted several times. Today the Court issued a per curiam decision summarily reversing the Fifth Circuit. It appears following today’s order list (beginning at page 11 of the .pdf file). Here are some highlights:
Plaintiffs below, petitioners here, worked as police officers for the city of Shelby, Mississippi. They allege that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen. Charging violations of their Fourteenth Amendment due process rights, they sought compensatory relief from the city. Summary judgment was entered against them in the District Court, and affirmed on appeal, for failure to invoke 42 U. S. C. §1983 in their complaint.
We summarily reverse. Federal pleading rules call for “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted. See Advisory Committee Report of October 1955, reprinted in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A. Steinman, Federal Practice and Procedure, p. 644 (2014 ed.) (Federal Rules of Civil Procedure “are designed to discourage battles over mere form of statement”); 5 C. Wright & A. Miller, §1215, p. 172 (3d ed. 2002) (Rule 8(a)(2) “indicates that a basic objective of the rules is to avoid civil cases turning on technicalities”).
Our decisions in Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), and Ashcroft v. Iqbal, 556 U. S. 662 (2009), are not in point, for they concern the factual allegations a complaint must contain to survive a motion to dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility. Petitioners’ complaint was not deficient in that regard. Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. See Fed. Rules Civ. Proc. 8(a)(2) and (3), (d)(1), (e). For clarification and to ward off further insistence on a punctiliously stated “theory of the pleadings,” petitioners, on remand, should be accorded an opportunity to add to their complaint a citation to §1983. See 5 Wright & Miller, supra, §1219, at 277–278 (“The federal rules effectively abolish the restrictive theory of the pleadings doctrine, making it clear that it is unnecessary to set out a legal theory for the plaintiff’s claim for relief.” (footnotes omitted)); Fed. Rules Civ. Proc. 15(a)(2) (“The court should freely give leave [to amend a pleading] when justice so requires.”).
Friday, November 7, 2014
Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process absent a showing of good cause, as the Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether the district court lacks such discretion, as the Fourth Circuit has held?
You can find links to the cert. stage briefing (as well as the merits briefs as they come in) at SCOTUSblog’s Chen case file.
Thursday, October 16, 2014
Cases on Tap for Tomorrow’s SCOTUS Conference: Are Cert Grants Coming on Pleading and Personal Jurisdiction?
A couple of cases on the calendar for tomorrow's Supreme Court conference are worth a quick mention. Both appear on SCOTUSblog’s "relist" list. (That they had already been calendared for previous conferences and avoided a quick cert. denial presumably means they generated at least some interest or need for further inquiry.)
One is Johnson v. City of Shelby, a case out of the Fifth Circuit that raises some interesting questions about pleading standards that we covered earlier. This is the second time Johnson has been relisted.
Another is AEP Energy Services v. Heartland Regional Medical Center, a case out of the Ninth Circuit on personal jurisdiction. Here are the questions presented in AEP:
1. Whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants based on the plaintiffs’ bare allegation that the defendants engaged in a nationwide conspiracy outside the forum that had an intended effect inside the forum (as well as presumably in every other state).
2. Whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants when the defendants’ limited forum conduct bears no causal relationship to the plaintiffs’ claim.
You can find all of the AEP cert-stage briefs at SCOTUSblog. The Ninth Circuit’s opinion is In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716.
Wednesday, October 15, 2014
Over on the Courts Law section of JOTWELL is an essay by Lee Epstein entitled The Depreciation of Precedent. It reviews an article by Ryan Black and James Spriggs that was recently published in the Journal of Empirical Legal Studies.
Thursday, October 9, 2014
1. Is a federal complaint subject to dismissal when it fails to cite the statute authorizing the cause of action?
2. Do the lower federal courts have authority to create pleading requirements for complaints when those requirements are not contained in the Federal Rules of Civil Procedure?
3. Should a federal complaint be dismissed when it alleges the elements of a 42 U.S.C. § 1983 claim, but does not cite 42 U.S.C. § 1983?
It's been re-calendared for this Friday's conference (10/10). Here's the Fifth Circuit's decision below.
(Hat Tip: Shaun Shaughnessy)
Tuesday, October 7, 2014
Here is the transcript from today's oral argument in Dart Cherokee Basin Operating Co. v. Owens. Some pretty interesting exchanges--although many of them had nothing to do with the actual question presented. The Justices spent a considerable amount of time on the jurisdictional/abuse-of-discretion argument first raised by Public Citizen in an amicus brief.
The question for which cert. was granted was this:
"Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required 'short and plain statement of the grounds for removal' enough?"
As to that issue, Justice Kagan commented to Petitioner's counsel that "most of us agree with you on the merits," although Justice Alito quickly responded, "That might be a little premature." [p.21]
The whole transcript is worth a read (if you're into that sort of thing), but here's one exchange between Justice Breyer and Respondent's counsel that speaks volumes about the state of pleading standards after Twombly and Iqbal:
MR. SHARP: [T]hat was part of the district court's opinion. There were two parts. One was that there wasn't any evidence; and the second part was that it was conclusory, that there were no facts. All you said was 8.2 million. And so both of those were possible --
JUSTICE BREYER: Isn't that a fact?
MR. SHARP: Excuse me, Your Honor?
JUSTICE BREYER: Isn't 8.2 million a fact?
MR. SHARP: It's a conclusory fact.
JUSTICE BREYER: Well, it's a fact. They said in their view --
MR. SHARP: It's a conclusion.
JUSTICE BREYER: All right. I don't know what a conclusory fact is as opposed to a regular fact.
Sunday, October 5, 2014
First Monday, baby. And right out of the gate is Dart Cherokee Basin Operating Co. v. Owens, which will be argued on First Tuesday (October 7). The SCOTUSblog argument preview by Ron Mann (Columbia) says the case “could have come straight out of a law-school exam.” Here’s the question presented:
Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required “short and plain statement of the grounds for removal” enough?
There’s also an interesting side issue regarding the extent of the Supreme Court’s jurisdiction when a federal appellate court has exercised discretion to deny leave to appeal under the special appellate provisions of the Class Action Fairness Act [28 U.S.C. § 1453(c)]. An amicus brief filed by Public Citizen argues that “the only question properly before the Court in this case is whether the court of appeals abused its discretion when it denied leave to appeal.”
Monday, September 29, 2014
SCOTUSblog reports that the Court dismissed the writ of certiorari in Public Employees' Retirement System v. IndyMac MBS, Inc. as improvidently granted. The issue in the case was whether the filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members.
The Court was set to hear argument in the case on Monday, but became aware of a pending settlement proposal.
Wednesday, September 17, 2014
Rich Freer (Emory) has posted on SSRN a draft of his article, Four Specific Problems with the New General Jurisdiction, which will be published in the Nevada Law Journal. Here’s the abstract:
General in personam jurisdiction allows a court to enter judgment against a defendant regarding a claim that did not arise in the forum. Traditionally, based upon International Shoe (1945), courts have exercised general jurisdiction over corporations based upon their "continuous and systematic" activities in the forum. In Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) and Daimler AG v. Bauman (2014), the Supreme Court has restricted general jurisdiction by making it available only where the defendant is "at home" (a notion apparently never adopted by any state court as a proxy for general jurisdiction).
Goodyear and Daimler were easy cases. The lower courts' exercise of general jurisdiction in each was risible. Instead of simply reversing the efforts, the Court decided several issues it did not need to decide and upset accepted understanding of activities-based general jurisdiction. Because the Court has never explained why we have general jurisdiction, it failed to explain why the new restriction is needed or appropriate.
This article focuses on four specific problems created by the new jurisprudence: (1) the Court unnecessarily prohibits general jurisdiction based upon sales into a forum, which will hamper growth of jurisdictional doctrine in Internet cases; (2) by ignoring corporate activities, the Court ignores the sorts of corporate contact that would be analogous to human domicile, which, the Court says, is the paradigm of "at home"; (3) by rendering activities-based general jurisdiction practically impossible and (4) by inexplicably jettisoning the "fairness factors" of International Shoe in general jurisdiction cases, the Court exacerbates its parsimonious view of specific jurisdiction by denying judicial access to American plaintiffs injured by foreign corporations.
Though some restriction of general jurisdiction may have been appropriate, it should have been measured and well-tailored to the underlying purpose of general jurisdiction. The Court's recent effort is not.
Monday, August 18, 2014
We covered earlier the upcoming Hastings Law Journal symposium on the Supreme Court’s recent decision in Atlantic Marine Construction Co. v. U.S. District Court. It will take place in San Francisco on Friday, September 19th. Here’s an announcement/invitation with more details:
You are cordially invited to attend a symposium on Atlantic Marine v. U.S. District Court, a decision by the U.S. Supreme Court last Term that held forum-selection clauses to be enforceable under Sec. 1404(a)'s authorization of venue transfer. The symposium, co-sponsored by UC Hastings and Hastings Law Journal, will bring renowned scholars from across the country to discuss the importance of the decision and its implications for civil litigation. Up to 3.5 hours of California MCLE credit is available. Free and open to the public, the symposium will be held at UC Hastings College of the Law, 198 McAllister St., in the Louise B. Mayer Room from 1:00-4:30pm on Friday, September 19, 2014. A reception for all attendees will immediately follow. Register here: http://www.hastingslawjournal.org/symposium/.
Thursday, July 3, 2014
(1) Whether the Trademark Trial and Appeal Board’s finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, in which likelihood of confusion is an element; and (2) whether, if issue preclusion does not apply, the district court was obliged to defer to the Board’s finding of a likelihood of confusion absent strong evidence to rebut it.
Hat tip: Professor Ira Nathenson, who also explained that the Trademark Trial and Appeal Board is not an Article III court, and that the nature of Likelihood-of-Confusion inquiries can vary between the TTAB and the District Court.
Monday, June 30, 2014
While everyone waits with bated breath for the Supreme Court to wrap up the current Term with decisions in Hobby Lobby and Harris, the Court granted certiorari in Gelboim v. Bank of America (No. 13-1174). From the cert petition, here is the question presented (with the usual wind-up):
The question “whether consolidated cases retain their separate identity or become one case for purposes of appellate jurisdiction has divided the courts of appeals.” United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 216 (D.C. Cir. 2003). “Some circuits hold that consolidated cases remain separate actions and no Rule 54(b) certification is needed to appeal the dismissal of any one of them. Others treat consolidated cases as a single action, or presume that they are, allowing the presumption to be overcome in highly unusual circumstances. Still other circuits apply no hard and fast rule, but focus on the reasons for the consolidation to determine whether the actions are one or separate.” Id. (citations and alterations omitted). This Court granted certiorari to resolve the conflict in Erickson v. Maine Central Railroad Co., 111 S. Ct. 38 (1990) (mem.), but the petition was subsequently dismissed, 111 S. Ct. 662 (1990) (mem.).
The Question Presented is:
Whether and in what circumstances is the dismissal of an action that has been consolidated with other suits immediately appealable?
Tuesday, June 24, 2014
In the latest Supreme Court round of Halliburton Co. v. Erica P. John Fund, Inc., the Court declined Halliburton's invitation to overrule Basic v. Levinson, but remanded to allow Halliburton, at the class certification stage, to attempt to rebut the presumption that the alleged misrepresentations actually affected the price of the stock. The Court's final two paragraphs:
More than 25 years ago [in Basic], we held that plaintiffs could satisfy the reliance element of the Rule 10b–5 cause of action by invoking a presumption that a public, material misrepresentation will distort the price of stock traded in an efficient market, and that anyone who purchases the stock at the market price may be considered to have done so in reliance on the misrepresentation. We adhere to that decision and decline to modify the prerequisites for invoking the presumption of reliance. But to maintain the consistency of the presumption with the class certificationrequirements of Federal Rule of Civil Procedure 23, defendants must be afforded an opportunity before class certification to defeat the presumption through evidencethat an alleged misrepresentation did not actually affect the market price of the stock.
Because the courts below denied Halliburton that opportunity, we vacate the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further proceedings consistent with this opinion.
Some coverage of the case:
Friday, June 20, 2014
SCOTUS: IRS Summons Challenger Must Show Facts Giving Rise to Plausible Inference of Improper IRS Motive
The IRS examined the tax returns of Dynamo Holdings Limited Partnership, and issued summonses to the respondents, "four individuals associated with Dynamo whom the Service believed had information and records relevant to Dynamo’s tax obligations. None of the respondents complied with those summonses."
The IRS instituted proceedings in District Court to compel the respondents to comply with the summonses. The IRS submitted an investigating agent’s declaration that the testimony and records sought were necessary to “properly investigate the correctness of [Dynamo’s] federal tax reporting” and that the summonses were “not issued to harass or for any other improper purpose.” In reply, the respondents pointed to circumstantial evidence suggesting that the IRS had “ulterior motives” for issuing the summonses: to “punish [Dynamo] for refusing to agree to a further extension of the applicable statute of limitations,” and to “evad[e] the Tax Court[’s] limitations on discovery.” Accordingly, the respondents asked for an opportunity to question the agents about their motives.
The District Court ordered the respondents to comply with the summonses. The Court of Appeals for the Eleventh Circuit reversed, holding that a simple “allegation of improper purpose,” even if lacking any “factual support,” entitles a taxpayer to “question IRS officials concerning the Service’s reasons for issuing the summons.”
The Supreme Court, in a unanimous opinion authored by Justice Kagan, vacated the Eleventh Circuit's opinion and remanded, holding that the Eleventh Circuit had applied an incorrect legal standard:
A person receiving an IRS summons is . . . entitled to contest it in an enforcement proceeding. . . . As part of the adversarial process concerning a summons’s validity, the taxpayer is entitled to examine an IRS agent when he can point to specific facts or circumstances plausibly raising an inference of bad faith. Naked allegations of improper purpose are not enough: The taxpayer must offer some credible evidence supporting his charge. But circumstantial evidence can suffice to meet that burden; after all, direct evidence of another person’s bad faith, at this threshold stage, will rarely if ever be available. And although bare assertion or conjecture is not enough, neither is a fleshed out case demanded: The taxpayer need only make a showing of facts that give rise to a plausible inference of improper motive. That standard will ensure inquiry where the facts and circumstances make inquiry appropriate, without turning every summons dispute into a fishing expedition for official wrongdoing. . . . But that is not the standard the Eleventh Circuit applied. . . . [T]he Court of Appeals viewed even bare allegations of improper purpose as entitling a summons objector to question IRS agents.
United States v. Clarke, No. 13-301 (U.S. June 19, 2014).
Tuesday, June 17, 2014
In the continuing worldwide drama over Argentina's 2001 debt default, Argentina loses another round. Republic of Argentina v. NML Capital, Ltd., No. 12-842 (U.S. June 16, 2014). Its creditor, NML Capital, which Argentina owes about $2.5 billion, has pursued postjudgment execution on Argentina's property since 2003. In 2010, NML subpoenaed two nonparty banks, Bank of America and an Argentinian bank with a branch in New York City. The subpoenas sought documents relating to accounts maintained by Argentina.
Argentina and BoA moved to quash the BoA subpoena (the Argentinian bank just didn't comply), and NML moved to compel. The district court granted the motion to compel, and the Second Circuit affirmed.
The Supreme Court also affirmed, rejecting Argentina's argument that the Foreign Sovereign Immunities Act prohibited discovery of Argentina's extraterritorial assets. Before its discussion of the FSIA, the Court discussed a Federal Rule of Civil Procedure -- Rule 69 -- that is rarely, if ever, mentioned in first-year civil procedure casebooks. (Hint, hint, casebook authors!) The Court noted that "[t]he rules governing discovery in postjudgment execution proceedings are quite permissive," citing Rule 69(a)(2), which allows a judgment creditor to take discovery "from any person -- including the judgment debtor -- as provided in the rules or by the procedure of the state where the court is located." The Court assumed without deciding that "in a run-of-the-mill execution proceeding [one where the judgment debtor is not a foreign state] . . . the district court would have been within its discretion to order the discovery from third-party banks about the judgment debtor's assets located outside the United States."
The question was thus whether the FSIA required a different result when the judgment debtor was, in fact, a foreign state. The FSIA, passed in 1976, confers two kinds of immunity on foreign states, jurisdictional (which Argentina waived) and execution immunity, which immunizes property in the United States of a foreign state from attachment and execution, with some exceptions.
"There is no third provision forbidding or limiting disocvery in aid of execution of a foreign-sovereign judgment debtor's assets," notes Justice Scalia for the majority. "[T]he reason for these subpoenas is that NML does not yet know what property Argentina has and where it is, let alone whether it is executable under the relevant jurisiction's law." The Court also dismissed concerns about international relations, suggesting that such an argument was better addressed to Congress.
Justice Ginsburg dissented. Justice Sotomayor took no part.
Friday, May 30, 2014
The Hastings Law Journal seeks submissions for a symposium on forum selection after Atlantic Marine Construction Co. v. U.S. District Court. The symposium, co-sponsored by the Journal and by UC Hastings College of the Law, will be held at UC Hastings in San Francisco on Friday, September 19, 2014.
Topics may include -- but need not be limited to -- analyses and implications of the Supreme Court’s decision, the sources of law governing forum selection, and issues of private control of litigation more generally. Accepted essays will be published in the Journal in 2015, and invited participants will receive assistance with travel and lodging expenses. Practitioners and others working in the field are welcome to attend.
Abstracts of 2-4 pages should be sent to firstname.lastname@example.org no later than Monday, June 23. Authors of accepted essays will be notified in the first week of July, and completed drafts must be submitted for circulation to symposium participants by Friday, September 5.
Tuesday, May 27, 2014
Today the Supreme Court issued a unanimous decision in Wood v. Moss, with Justice Ginsburg authoring the opinion for the Court. As covered earlier here, Wood v. Moss is a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his 2004 visit to a restaurant in Oregon. The plaintiffs claim that the defendants, who were secret service agents, violated their First Amendment rights by moving them farther away from the President than a similar group that was expressing support for the President.
In today’s decision, the Court unanimously rules that the defendants are protected by qualified immunity. To most, this conclusion did not come as a surprise. For many proceduralists, however, the case was of particular interest because of its potential effect on pleading standards in the wake of Twombly and Iqbal. Here’s how Justice Ginsburg puts things in footnote 5: “In ruling on a motion to dismiss, we have instructed, courts ‘must take all of the factual allegations in the complaint as true,’ but ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).” And on page 12: “[U]nder the governing pleading standard, the ‘complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ Iqbal, 556 U.S., at 678 (internal quotation marks omitted).”
Part II.B of the opinion contains the most detailed discussion of qualified immunity and its requirement that a plaintiff’s claim be based on a right that was “clearly established at the time of the challenged conduct.” [p.12]. Among other things, Justice Ginsburg writes:
“No decision of which we are aware ... would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to ensure that groups with different viewpoints are at comparable locations at all times. ... No clearly established law, we agree, required the Secret Service to interfere with even more speech than security concerns would require in an attempt to keep opposing groups at roughly equal distances from the President. And surely no such law required the agents to attempt to maintain equal distances by prevailing upon the President not to dine at the Inn. [pp.14-15 (citations and internal quotation marks omitted)]”
Part III of the opinion addresses a potentially distinct theory of liability, and that part of the opinion may prove more instructive on pleading standards generally. Part III begins: “The protesters allege that, when the agents directed their displacement, the agents acted not to ensure the President’s safety from handguns or explosive devices. Instead, the protesters urge, the agents had them moved solely to insulate the President from their message, thereby giving the President’s supporters greater visibility and audibility.” [pp.15-16] Justice Ginsburg does recognize the possibility that “clearly established law proscribed the Secret Service from disadvantaging one group of speakers in comparison to another if the agents had no objectively reasonable security rationale for their conduct, but acted solely to inhibit the expression of disfavored views.” [p.16 (citations and internal quotation marks omitted)] She rejects this theory, however, noting that a map of the relevant area that the plaintiffs had included in their complaint “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions”; the map “corroborates that, because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not.” [p.16]
Although the plaintiffs “make three arguments to shore up their charge that the agents’ asserted security concerns are disingenuous,” [p.16] Justice Ginsburg is not persuaded. In particular, she writes:
“[A]s the map attached to the complaint shows, see supra, at 4, when the President reached the patio to dine, the protesters, but not the supporters, were within weapons range of his location. See supra, at 14. Given that situation, the protesters cannot plausibly urge that the agents had no valid security reason to request or order their eviction.” [p.18 (citations and internal quotation marks omitted)]
One of the many questions that has vexed courts, commentators, and practitioners after Twombly and Iqbal is how to evaluate allegations about a defendant’s intent. Although the 2002 decision in Swierkiewicz v. Sorema suggested a very lenient approach to such allegations, many have read Iqbal – which also involved allegations of discriminatory animus – to require a stricter approach. At first glance, Wood does not seem to provide a conclusive resolution. Although the Court rejects the plaintiffs’ viewpoint-discrimination theory, Justice Ginsburg relies heavily on the fact that material in the complaint itself – the map of the relevant area – “undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions.” [p.16] This is not likely be a regular occurrence in cases involving discriminatory intent. Another feature of Wood may be even more important. Given Justice Ginsburg’s reasoning regarding qualified immunity, the plaintiffs would have had to show that “the agents had no objectively reasonable security rationale.” [p.16] Part III of the opinion, therefore, did not hinge on the premise that viewpoint discrimination played no role at all in the defendants’ decision; rather – as a matter of the substantive law governing the defendants’ qualified immunity defense – the presence of an objectively reasonable security rationale doomed the plaintiffs’ claims even if viewpoint discrimination also played a role.
PS: Readers may have noticed Adam Liptak’s recent New York Times article describing how Supreme Court opinions can be revised by the Justices after they are initially issued – sometimes years later. For what it’s worth, then, I’m including in this post not only the relevant link to the opinion on the Supreme Court’s website, but also a downloaded version of the opinion as it originally appeared there this morning:
Thursday, May 8, 2014
Ed Brunet and John Parry (Lewis & Clark) present the following guest post:
The growing list of summary judgment skeptics should find much to like in Monday’s Tolan v. Cotton decision. In a per curiam opinion, the Supreme Court reversed a Fifth Circuit decision that had affirmed a grant of summary judgment on grounds of qualified immunity in a section 1983 case. Although the decision of the Supreme Court turns largely on substantive civil rights law, Tolan is surprisingly instructive regarding summary judgment mechanics. The Supreme Court emphasized that the lower courts had not weighed inferences in favor of the nonmovant regarding the substantive element of whether the alleged excessive force used by the defendant police officer violated “clearly established rights,” and it asserted that the “judge’s function at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Some of the basic facts are undisputed. This case involved a police officer’s 2 a.m. stop of a car that had “turned quickly” onto a residential street. The decision to stop followed the officer’s keying in the wrong license number into his computer and incorrectly thinking that the car was stolen. The arresting officer drew his pistol and ordered the two men in the car to the ground. When the parents of plaintiff Tolan emerged from the front door of the house where the car had parked, the officer stated that he believed that the two men had stolen the car and the excited parents pointed out that they owned the vehicle and the house. The mother’s continued protestations caused officer Cotton, a new arrival on the scene who also had his gun drawn, to order her to stand against the garage door.
The evidence was clearly conflicting regarding what happened to Tolan’s mother. Tolan presented evidence that his mother was grabbed by the arm by officer Cotton and slammed to the ground with such force that bruising, confirmed by photos, occurred. Cotton denied slamming her into the garage and contended that he was escorting her, she “flipped her arm up and told him to get his hands off her.” This scene ended when Tolan stated, “Get your fucking hands off my mom,” to which Cotton responded by firing three shots at Tolan, causing liver and lung damage. A dispute of facts exists as to whether Cotton had pushed Tolan’s mother against the garage door, and whether Tolan was standing or had risen to his knees when shot. There was also a dispute about the quality of lighting at the front of the house.
The lower court opinion resolved the factual issues against Tolan, stating “his shouting and abruptly attempting to approach Sergeant Cotton inflamed an already tense situation; in the light of his actions at the scene, a genuine dispute of material fact does not exist regarding whether Sergeant Cotton acted objectively unreasonably.” The Supreme Court, in turn, chastised the Fifth Circuit for “failing to credit evidence that contradicted some of its key factual conclusions” and for “a clear misapprehension of summary judgment standards in light of our precedents.”
It is tempting to assess this case as a major summary judgment decision. After all, this is the first summary judgment victory in the Supreme Court for a civil rights plaintiff in some time. The rhetoric used by the Court is a time-worn cliché, namely that “at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.” This is hardly new law. Its use in a per curiam opinion summary reversal arguably signals a major change in attitude. But, it may be that all the Supreme Court is doing here is correcting a grievous error. It seems almost impossible not to find disputed issues of fact on this record, as Judge Dennis observed in his dissent from rehearing en banc. If the Court had let the lower court decision stand, the error would win the day. Yet, if that had been all the Court wanted to accomplish, it could have simply vacated and remanded to the lower courts with instructions to weigh inferences in favor of the nonmovant, without detailing the facts and the Fifth Circuit’s errors.
At the very least, the per curiam decision should embolden courts to identify disputed facts. Further, citing the landmark 1987 Anderson v. Creighton opinion – a case which typically is invoked against plaintiffs, not against defendants – Tolan reminds lower courts that the clearly established right at issue needs to be examined in “the ‘specific context of the case’” in order to avoid “import[ing] genuinely disputed factual propositions.”
Justice Alito concurred joined by Justice Scalia. He noted the unusual posture of the case in which the Court both granted a petition for certiorari and vacated the Fifth Circuit’s judgment. (Will Baude also comments on this aspect of the concurrence here.) He stresses that this was a typical summary judgment dispute over “whether the evidence in the summary judgment record is just enough or not quite enough to support a grant of summary judgment.” Alito goes on to conclude that the Court of Appeals “invoked the correct standard here.” The use of the word “standard” appears questionable. The directed verdict standard is the only standard used in summary judgment, replacing the old “doubt” standard of many circuits. More later!